Nowland, Nowland & Nowland v Boardman, Boardman & Gurnick

[1996] QSC 33

IN THE SUPREME COURT

OF QUEENSLAND  No. 231 of 1992

Brisbane

Before the Honourable Mr. Justice Lee

[Nowland, Nowland & Nowland v Boardman, Boardman & Gurnick]

BETWEEN:

DENIS ALFRED NOWLAND, widower of LYNETTE FAY NOWLAND, deceased, CANDIDA JANE NOWLAND and BENJAMIN EARL NOWLAND (an infant by his next friend, the said DENIS ALFRED NOWLAND)

Plaintiffs
AND:
  LEONARD A. BOARDMAN and RUSSELL E. BOARDMAN

First Defendants
AND:
  TREVOR T. GURNICK
  Second Defendant

REASONS FOR JUDGMENT - W.C. LEE J.

Judgment Delivered 08/03/1996

CATCHWORDS:     Lord Campbells Act - damages - death of wife - plaintiff and wife carrying on plumbing and construction business in partnership - wife an active partner - whether plaintiff can claim for loss to business following wife's death - collapse of business two years after wife's death - whether collapse caused by wife's death or by bad business decisions of plaintiff - whether claim limited to loss flowing from cessation of domestic relationship - whether benefit conferred on plaintiff when he and his wife with separate incomes live together - question of fact - lack of evidence to show extent of loss.

Burgess v. Florence Nightingale Hospital for Gentlewomen [1955] 1 Q.B. 349, Henry v. Perry [1964] V.R. 174 considered.

COUNSEL:G J Radcliff for the plaintiff

J McDougall for the defendant

SOLICITORS: Crowther Beattie for the plaintiff

McInnes Wilson & Jensen for the defendant

HEARING DATES:     11, 12 May 1995

IN THE SUPREME COURT

OF QUEENSLAND  No. 231 of 1992

Brisbane

Before the Honourable Mr. Justice Lee

BETWEEN:

DENIS ALFRED NOWLAND, widower of LYNETTE FAY NOWLAND, deceased, CANDIDA JANE NOWLAND and BENJAMIN EARL NOWLAND (an infant by his next friend, the said DENIS ALFRED NOWLAND)

Plaintiffs
AND:
  LEONARD A. BOARDMAN and RUSSELL E. BOARDMAN

First Defendants
AND:
  TREVOR T. GURNICK
  Second Defendant

REASONS FOR JUDGMENT - W.C. LEE J.

Judgment Delivered 08/03/1996

The plaintiff, Denis Alfred Nowland, is the widower of Mrs Lynette Fay Nowland ("the deceased") who was killed in a motor vehicle accident on 4 December 1989 as a result of the admitted negligence of the first defendants' employee.  The plaintiff now claims damages for loss of dependency as a result of the death of his wife.  I was informed at the commencement of the trial that the claims of the other plaintiffs named in the writ, the two children of the marriage, who are now sui juris, have since been resolved and that a notice of discontinuance has been filed against the second defendant.

Much of the history of the plaintiff's relationship with the deceased is recounted in his own evidence.  That evidence remained, for the most part, unchallenged and save in certain respects which will be specifically detailed throughout these reasons, I accept it and the facts conveyed in it as accurate.  Several of the other witnesses gave accounts of parts of the deceased's activities which corroborated that given by the plaintiff but insofar as they did so, I need not refer to their evidence specifically.

The plaintiff and the deceased were married in 1971.  They had been married for 18 years prior to her death.  There were two children of the marriage, Candida born in 1973 and Benjamin, born in 1975.  The plaintiff was a plumber by trade, having finished his apprenticeship in 1970.  In 1973 he commenced what was essentially a domestic plumbing business involving general plumbing work.  It was only a small scale operation and for that reason did not require much in the way of support.  From about 1974, the deceased commenced to do certain work in the business, mainly of a secretarial nature, and mainly on a part-time basis.  She was then relatively inexperienced in that work.  I was not told whether she was paid for this work. 

As the business developed, so to did the deceased's role in it.  Within a few years it moved into the area of subcontract work within the housing construction industry and the deceased found herself in full-time employment.  Soon after this period of expansion, it was decided between the plaintiff and the deceased that they should conduct the business in partnership.  No formal agreement was ever entered into but the partnership returns indicate and I accept that the plaintiff and the deceased were equal partners, sharing profits accordingly.

By 1976 the plaintiff had completed a two year course with the Builders' Registration Board and obtained qualification as a registered builder.  In the same year the partnership business expanded yet again, this time into construction, mainly in the area of speculative housing.  With this expansion came the need to employ others, mainly skilled tradesman, to fulfil the additional labour requirements.  The deceased's position within the business also continued to evolve.  No longer were her duties mainly secretarial in nature, she had really taken on the role of controller and manager of the administrative side of the undertaking.  She would, amongst other things, keep the books, look after the payroll, assist in the preparation of quotes and the purchasing of stock and equipment supplies and attend to local authority approvals and inspections.  She was really the public face of the enterprise.  This in turn freed up the plaintiff's time and enabled him to devote himself more to the roll of supervisor and manager of works.  As the plaintiff himself said in the course of his evidence, by this stage he and the deceased were undeniably full working partners.

In 1976 the plaintiff underwent a laminectomy which left him with some difficulty with his right leg, resulting in pain from time to time.  He had a noticeable limp when walking into the witness box.  He said this affected some aspects of his plumbing work.

Nevertheless, in 1979 the business undertook further change.  It moved from its focus on domestic building works to a more commercial perspective.  According to the plaintiff, the construction side of things had become more profitable and for that reason they had decided to concentrate their industry in that area.  The plumbing business still remained but took very much a back seat during this period. 

In the same year (1979) the plaintiff and the deceased also became involved in a retail hardware store as partners with one of their subcontractors and his wife.  Initially they traded out of a rented portion of a factory which the partnership business had constructed, but eventually they found the need to expand and move to rented premises of their own.  Both the plaintiff and the other male partner were heavily involved in the partnership business and it was in essence left to the deceased and the remaining female partner to run the store, although the deceased continued to keep the books of the business in which the plaintiff was involved and also assisted with some administrative work.  Soon after the enterprise commenced, however, the plaintiff and his wife had a falling out with their partners and they allowed themselves to be bought out in 1980.

Some little time later, and in addition to their other building and plumbing enterprises, the plaintiff and the deceased commenced managing an indoor cricket centre, which involved long hours of work as a result of which the plumbing business became neglected.  That role in the cricket centre only lasted for about 12 months, however, as both of them found the hours and work too much in addition to their other activities.  That operation had not been as profitable as expected.  In about 1982, they returned to what the plaintiff described in his evidence as the base or core business, i.e. their commercial plumbing and construction operations.

In 1983 with the effect of interest rates and the recession on the speculative housing industry as well as bad business decisions, that side of the partnership business encountered financial difficulties.  In retrospect, the plaintiff said in evidence, they had tried to expand too rapidly.  To cover their debts and existing obligations, the plaintiff and the deceased were required not only to abandon that facet of the business but also to sell their home and, in the plaintiff's words, start over again.

At that point the plaintiff, the deceased and their two children moved into the plaintiff's parents' home.  There was in fact a granny flat attached to the home which the plaintiff and the deceased occupied but, presumably because of the lack of space, the children were forced to sleep in the main house.  Apart from the sleeping arrangements, however, all family activities were performed together. 

In trying to rebuild their core business the respective roles of the plaintiff and the deceased took on much the same character as was previously the case, i.e. the deceased looked after the administrative side (e.g. banking, taxation and quotations) of the partnership whilst the plaintiff more or less worked in the field.  The business was being run from their home and both were required to put in extended hours.  Quite often the deceased would be required to work into the night and on weekends, doing the books, preparing quotes and the like.

In early to mid-1989 the plaintiff received an offer from the industrial relations officer of Thiess Watkins White, Mr Gordon Hutchings, to move into the construction industry as an employed worker.  By that stage he and the deceased had succeeded in partially rebuilding the partnership business and all appeared to be going well.  After discussion with the deceased and their foreman, Mr Peter Kolk (a qualified fitter and welder who was employed by the plaintiff and the deceased some two years before her death), the plaintiff became convinced that he would be able to accept the offer without unduly affecting the operation of their business.  He did so.  The aim of the plaintiff and the deceased at that time was said to be to regain their lost past and rebuild the business to its previous level.  The plaintiff, however, did not see his stepping aside for a period as interfering with that goal.

The plaintiff's first job with Thiess Watkins White was as project manager of a theatre construction site at Coolangatta which was not very far from his home.  From that point on, his role within the partnership business was reduced to one, more or less, of consultancy.  Otherwise the business was run completely by the deceased with the assistance of the firm's employees and in particular Mr Kolk.  She had recourse to the plaintiff for advice in technical matters.  He had to do all necessary certifications that work was correctly performed.  At this stage the plaintiff estimated that his wife would have been putting in excess of 60 hours per week into it until her death on 4 December 1989.

The plaintiff was still working as an employed person at the time of his wife's death.  In February 1990 he was transferred to Sydney but soon after Thiess Watkins White was placed in receivership.  He ceased employment there and returned home to resume his place within the family business.  This occurred in about August 1990.

To fill the void left by the death of his wife, the plaintiff employed his sister, Ms Cheryl Adele Kean, in the business as and from 21 December 1989.  She was paid the secretarial award rate of $350.00 gross per week which translated to about $290.00 per week in the hand.  Ms Keen was unfamiliar with the trade.  She was not properly conversant with plumbing and construction jargon and was unable to do much that the deceased did.  Nevertheless she would look after the employees' wages, help with quotes and generally look after the books of account.  She also completed the task commenced by the deceased of computerising the business' records.  She ceased employment in March 1991 after her relationship with the plaintiff had become strained following a $10,000.00 mistake said to have been made by the plaintiff's sister in failing to charge for an extra in a job, which he could not recover.

When the plaintiff moved back into the business in August 1990 it appeared to be running smoothly.  It had tendered for and was successful in obtaining the contract for major plumbing works at the construction site of the Cloudland residential complex in Brisbane, a job which was expected to keep the business occupied for a substantial time.  That project, however, eventually turned out to be the failure of the business.  It was located in a rocky area which meant that a great deal of time, effort and money had to be spent in excavation works.  This was something which had not been catered for in the tender due to a significant mistake.  Although there was a suggestion by the plaintiff in evidence that had the deceased not been killed, such an oversight would not have been made, I am by no means satisfied that that would have been the case.  He, the plaintiff, was the technical expert of the partnership and I am satisfied that the deceased's role in the quoting and/or tendering process was limited to calculating in a formal way the cost of labour and materials estimated by the plaintiff to be required for a particular job.

Eventually, in March 1991 the plaintiff had to walk away from the project.  There were several large debts outstanding to creditors.  $13,000.00 is owed to the Bank of Queensland in respect of the business' overdraft facility.  $35,000.00 is owing to Esanda in relation to the now terminated lease of two vehicles.  The original debt in respect of the lease, however, was somewhere in the order of $70,000.00.  There is also $16,000.00 owing to a particular supplier from whom the plaintiff obtained any necessary equipment.  Those figures alone total $64,000.00 but the plaintiff agreed in cross-examination that the original debt may well have been in excess of $100,000.00.

It appears, and I accept, that at the time of the deceased's death, the partnership business was in good condition.  It had more than doubled its turnover in the 1990-91 financial year in comparison with the 1989-90 financial year.  Profits had increased substantially and work seemed to be readily available.  No doubt much of this growth can be attributed to the industry of the deceased but it by no means follows that the eventual downfall of the business should be associated with her death.  On the evidence presented to me, I am satisfied that that event was due solely to the losses incurred on the Cloudland project which were in turn due to the conduct of the plaintiff.  Those losses wiped out the business' cashflow and with it any chance of recovery.  I find accordingly.

It follows in my opinion that the plaintiff has failed to establish as matter of fact any casual link between the cessation of the partnership business in October 1991 and the first defendants' negligence.

In the same month as the plaintiff was required to walk away from the Cloudland project, March 1991, he engaged the services of Ms Susan Rholl within the business.  Ms Rholl was experienced in the trade and was able to more capably fill the position left by the deceased.  Unfortunately there is no evidence as to whether Ms Rholl was paid for her services and if so how much.  The business ceased trading in June 1991. 

In February 1992 the plaintiff entered into a de facto relationship with Ms Rholl.  In April 1992 he commenced working for John Holland Constructions in Brisbane, a job which he also got through his contact with Mr Hutchings.  That position lasted for about 12 months and in mid-1993 he commenced work at North Goonyella.  After a short break he started, in 1994, working on the Townsville Army Base Hospital, again for John Holland Constructions.  That job took seven or eight months.  Since then and to the date of the trial he has been working again for John Holland Constructions in Longreach.

As far as their domestic situation was concerned, the plaintiff gave evidence which his daughter confirmed that the deceased did most if not all of the work around the home.  She would cook the meals, clean the house and perform all the domestic chores, including mowing the lawn and tending to the gardens.  The plaintiff described his wife's lifestyle as fairly frugal.  They both had a very modest wardrobe and he estimated that she probably spent no more than $50.00 on herself per week.  Both children of the marriage resided with the plaintiff's parents for a substantial time after the deceased's death but are now out on their own.

The deceased died without a will.  Her estate accordingly passed to the plaintiff and their two children under the intestacy rules.  Essentially, however, the plaintiff took over the entire business undertaking.  The remainder of her estate was very meagre.  The car which was involved in the motor vehicle accident was written off.  It was jointly owned and $11,000.00 was received in the insurance pay out for it.  There were also the deceased's personal effects including her clothes.  At the time of her death they had some little amount of money in the bank although no details of this were provided.  They owed no debts.

The major part of the plaintiff's claim relates to losses allegedly incurred due to the absence of the deceased from the partnership business.  To this end the plaintiff tendered a report prepared by Ernst & Young, accountants, which purported to quantify that loss.  The report is dated 9 May 1995 and purports to cover both the pre‑trial and post-trial periods.

The loss to the business between the date of the deceased's death and 4 October 1991, when the business ceased trading, was calculated in the report by reference to the cost of replacement labour.  From the tax returns of the partnership it appears that the sum of $28,003.34 was paid for this.

For the period from 5 October 1991 to trial, those losses were calculated by reference to the average yearly earnings of the business in the financial years ended 30 June 1989, 1990 and 1991.  That was calculated to be $69,300.00.  Taking into account economic factors which were said to allow for fluctuations in the building and construction industry, and deducting an appropriate amount of tax, a figure of $144,549.00 was reached for lost profits during this period. 

The total claim for pre‑trial loss is accordingly $172,552.34.

A similar approach was adopted in relation to the plaintiff's alleged future loss.  The pre-tax profits of the business for the financial years ended 30 June 1989, 1990 and 1991 (taking into account the cost of replacement services during those years) were averaged, tax was deducted and after making a 12.5% allowance for fluctuations in the construction industry, the profits which the business would have made up to various suggested retirement ages were calculated.  I need not examine the appropriateness of this methodology.  The calculations are based on the assumption that the failure of the partnership business can be casually linked to the deceased's death and as I have found that is simply not the case.  The result is that in so far as the plaintiff claims damages for losses suffered after the cessation of the business it is misconceived.

I turn now to consider the legal basis of the plaintiff's claim.  In doing so it must be borne in mind that it is and always has been framed as an action for loss of dependency, not as an action in negligence.   It is therefore not necessary for me to consider whether, at common law, an action lies at the suit of one party for the death of his or her business partner in respect of any loss said to flow from that event.  However, it may be observed in passing that claims of that nature have not found much favour with the Courts in the past, a position which no doubt stems from the unusual difficulties associated with defining with any precision the principles upon which recovery may be allowed for pure economic loss: Caltex Oil (Australia) Pty Ltd  v.  The Dredge "Willemstad" (1975-76) 136 C.L.R. 529, 546-7, 598; Foodlands Association Ltd  v.  Mosscrop [1985] W.A.R. 215; Plover  v.  Giampolo [1965] V.R. 275; Dahm  v.  Harmer [1955] S.A.S.R. 250.

Of course one of the recognised exceptions to the generally stated rule that one person cannot recover damages for economic loss caused to him or her by the death or injury of another, is a claim for loss of dependency under the Common Law Practice Act.  Even then, however, it was suggested by Mr McDougall on behalf of the first defendants that the loss which the plaintiff can claim under that Act in respect of the death of his wife must be limited to that which is related to the cessation of their matrimonial relationship as opposed to the cessation of their business relationship.  In doing so he placed considerable reliance on the decision of Devlin J. in Burgess v. Florence Nightingale Hospital for Gentlewomen [1955] 1 Q.B. 349. At p. 357 his Lordship said:

"The loss [which is claimed] must be a loss which arises from the relationship which is specified in the section."  see also Maylon v. Plummer [1963] 1 Q.B. 419 and, on appeal, [1963] 2 W.L.R. 1213; Henry v. Perry [1964] V.R. 174,175-6.

The proposition can be summed up by saying that the plaintiff must limit his claim to that loss which has arisen or will arise by virtue of the loss of his wife as a wife.  Indeed it was not argued before me by counsel for the respondent, Mr Radcliff, that such a limitation ought not be implied into the Act.  Consequently I am relieved of the task of deciding upon the correctness of the authorities cited by Mr McDougall in support of it.  I would only add that although such an approach seems consistently to have been adopted by the English Courts and, to some extent, by several of the Supreme Courts of the Australian States, one may well debate the legitimacy of a technique of statutory interpretation which would seek to cut down the broad and uninhibited language of a statute such as the Common Law Practice Act, by reference to the pre‑existing and far more restrictive common law.

In determining whether a particular loss may be said to flow from the severance of a domestic as opposed to a commercial relationship the courts have, again rightly or wrongly, assumed an unusual willingness to disregard the legal structure employed by the parties to run their business: see particularly Maylon v. Plummer, 342 and cf. the position in regard to personal injury cases recently examined by the Court of Appeal in Seymour v. Suncorp Insurance and Finance (Q.L.R. 29/07/95) and Ruff v. Milton (unreported, 08/09/95).

The concession made on the plaintiff's behalf, however, does not necessarily lay rest to his claim.  Rather, he sought to meet the defendant's submissions on this point by suggesting that in the present case the partnership between the plaintiff and the deceased was one which arose as an incident of their marriage and which should therefore fall within the ambit of the Act: cf Hennry v. Perry.  The relevant question, which appears to me to be ultimately one of fact, is whether the provision of the assistance or services rendered by the deceased arose out of their matrimonial relationship.

The point can be illustrated by reference to the authorities.  There are several cases in which a deceased spouse or child has rendered services free or at a reduced rate for the benefit of a husband, wife or parent.  In most of those cases the Courts have been prepared to hold not only that the cessation of these services through the death of that person inflicted a loss on the plaintiff which was, or was likely to be, productive of pecuniary detriment, but also that that loss arose out of the filial or matrimonial relationship: Franklin  v.  South Eastern Railway Company (1858) 3 H. & N. 211; Condon  v.  Great Southern & Western Railway Company (1865) 16 Ir.C.L.Rep. 415.  Equally, however, there are cases where the incidental existence of such a relationship has had no bearing on the basis upon which those services were provided: Sykes  v.  North Eastern Railway Company (1875) 44 L.J.C.P. 191. Those cases have denied recovery on the rationale that the losses incurred by the plaintiff as a result of the death were not losses arising so much from the loss of the spouse or child as a spouse or child but from the loss of the spouse or child in some other capacity, for example, as an employee.

As already mentioned, however, the ultimate question is essentially one of fact.  This case is complicated by the circumstance that in early to mid-1989, the plaintiff left the partnership business to undertake paid employment.  Until then, I would have had no hesitation in accepting that the parties business relationship existed on a purely commercial footing and the plaintiff should not be compensated for its cessation: they were both actively working in the business and contributing their labour at an equivalent rate.  After that date, however, their relationship undertook a change.  The deceased contributed all of the effort to the business whilst the plaintiff took half of the profits.

In principle I see no reason why such a change should not be held to affect the plaintiff's entitlement to compensation.  Logically, a determination of the question of how a particular pecuniary advantage came to the plaintiff must be judged by reference to the nature of the relationship between the plaintiff and the deceased at the time of death.  Of course the fact that that relationship may have evolved or simply changed in the period prior to then may foreseeably be relevant in some cases  to the ascertainment of the future likelihood of its continuance.  But if a benefit which was at the time of death being derived from the matrimonial relationship is interfered with because of the severance of that relationship, the surviving spouse is I think entitled to compensation for the loss of that benefit for so long as it is found that it would have continued in the future but for the defendant's acts.

In the present case, one may well have expected a partner in the position of the deceased to have drawn a substantial salary for her efforts before any distribution of surplus profits.  No doubt she did not oppose the continuation of the then existing profit sharing arrangements because of the benefits which she expected to derive from the injection of a further income into the family's resources.  There was, moreover, no reason to doubt that the new arrangements would continue into the foreseeable future.  They had apparently worked successfully to the date of her death with no adverse impact on the business.  In those circumstances I am prepared to hold that from the time in 1989 when the plaintiff left the partnership business with no consequential change in the profit sharing arrangements then in existence in relation to it, the basis of their partnership changed.  It was, I infer, because the deceased was the plaintiff's wife that she agreed to take sole responsibility for the running of the business.  Similarly, I infer, it was because the deceased was the plaintiff's wife that she agreed to do so for no apparent additional remuneration.

Before turning to quantify the extent of any loss suffered by the plaintiff, however, there is one further matter which bears upon his right to damages in this regard.  As I have found, the failure of the business in June 1991 was attributable not to the death of the deceased, but rather to the commercial decision making of the plaintiff.  The sole financial contribution which the deceased applied to the household was through the business.  With its cessation so too did her financial contribution to the upkeep of the household cease.  It was not explicitly suggested, and there in certainly no evidence in support of the view, that the deceased and the plaintiff would have commenced or would have had the capacity to commence any new undertaking or that the deceased would otherwise have provided a source of income for the family.

History then has revealed that, quite apart from any conduct of the defendants, the business had a finite life.  Given that, it would in my opinion be entirely wrong to compensate the plaintiff on the basis that but for the deceased's death he would have continued deriving profits from it up until the normal age of retirement and, as I have said, I do not propose to do so.  I should also add, lest it be thought that I have overlooked it, that there is no evidence before me that the cessation of the plaintiff's paid employment with Thiess Watkins White was related to the deceased's death.  It seems to have been caused solely by the financial position of that company.  There is no evidence that had his wife continued to run the partnership business as she had done, the plaintiff would have been able to secure or would even have been minded to secure other paid employment.  Again, therefore, I do not consider the cessation of that additional source of income to the plaintiff to be causally associated with the defendant's negligence.

In order to determine the plaintiff's loss, it is convenient to examine the financial resources of the plaintiff and the deceased before the accident and of the deceased after it.  So far as I can see the major effects on the business as a result of the deceased's death were threefold.  In the first place the plaintiff's sister was required to be hired to replace some of the services previously provided by the deceased.  In the second place, the plaintiff became the sole beneficiary of the profits of the business.  Lastly the incidence of taxation on those profits would have fallen more heavily upon the plaintiff individually than would have been the case had the profits been divided between two equal partners.  No evidence was led on this point and I shall disregard it.

Clearly no direct financial loss accrued to the plaintiff as a result of his wife's death.  His share of the business' profits increased.  That, however, is not the end of the matter.  Insofar as the deceased applied her share of the partnership's income towards the maintenance of the plaintiff and the household there may well have been an indirect benefit conferred on him.  As Devlin J. himself recognised in Burgess at p. 362:

"It seems to me that when a husband and wife, either with separate incomes or with a joint income to which they are both beneficially entitled, are living together and sharing their expenses, and in consequence of that fact their joint living expenses are less than twice the expenses of each one living separately, than each, by the fact of the sharing, is conferring a benefit of the other.  I think that such a mutual benefit clearly arises from the relationship by virtue of which they are living together, namely, the relationship of husband and wife, and accordingly comes within [Lord Campbell's Act]."

I accept this as an accurate statement of the law but once again it is essentially a question of fact whether such a benefit has been conferred.  The onus is on the plaintiff in a case such as this not only to prove his dependence on the deceased but to prove the extent of that dependence to enable the Court to be able to quantify his damages.  I have no doubt in the present case that by living together and pooling their resources the plaintiff and the deceased conferred a benefit on each other.  That benefit may have arisen in several ways.  As Devlin J. himself noted, two people can live together more cheaply than they can apart.  The plaintiff's share of his living costs would no doubt be less than they would have been had he been living on his own and to that extent a benefit may have been conferred upon him.  Similarly the deceased no doubt applied a proportion of her income towards the maintenance of the children of the marriage so relieving the plaintiff of any obligation which he may otherwise have had to do so on his own.  Indeed, the plaintiff said that "some" of the money she took out of her share of profits of the business was offered towards the maintenance and support of the household and that most of it would have been directed towards the maintenance and support of the children, not the plaintiff.

Accordingly I am prepared to infer from the mere fact of their cohabitation that the plaintiff was to some degree dependent upon the deceased.  The difficulty which is then encountered, stems from the complete lack of evidence as to the extent of that dependence.  Although I have been provided with copies of the deceased's tax returns from which I am able to determine her share of partnership profits while she was alive, no evidence has been given as to any expenses relating to maintenance of the household, the extent to which those expenses were paid out of her share of profits or the extent to which they were paid out of those of the plaintiff.

The plaintiff said in evidence that the deceased would have only spent $50.00 per week on herself.  That, of course, cannot be accepted as a complete statement of the amount spent on her for the simple reason that it fails to take into account more periodic outgoings of which the deceased shared in the benefit.  She ate food purchased for the household, consumed electricity used by it and otherwise took advantage of its shared expenses.  There is also the question of whether she spent part of her income on matter entirely for herself e.g. on a motor vehicle.

With such a dearth of evidence as to these matters I find it difficult to see any reason why the plaintiff should succeed at all in his claim.  Nevertheless it would be unfair to him, given the finding that some indirect financial benefit would inevitably have been conferred on him as a result of his co-habitation with his wife, to dismiss his claim altogether.  I therefore take as a starting point the additional amount which the business would have generated throughout the then limited period remaining in its life, calculated by reference to the cost of labour required to fill the gap left by the deceased's departure from it ($28,003.34).  To take into account various factors, including that that amount was used as a tax deduction in the business, that part of it would have been expended on the deceased and the children of the marriage and that the plaintiff obtained an accelerated benefit in having become entitled to the whole of the business' profits, I would discount that figure heavily in the present case.  Under this head I would award $15,000.00.  Interest at the rate of 6% over 7¼ years produces a figure of $6525.00 and I would award this amount also.

Despite the apparent dependence which the plaintiff placed on the deceased domestically, no claim was made for what might be termed Nguyen v. Nguyen (1989-1990) 169 C.L.R. 245 damages. Any such claim would of course encounter the same difficulties as to proof which I have previously mentioned. There was no evidence as to the number of hours per week which the deceased spent doing work of that nature, as to the arrangements which the family would inevitably have made to take over that work after her death or as to the cost of providing services to meet any residual need in that regard.

I should also mention before leaving the subject of damages that there seems to have been a veiled attempt to recover compensation for emotional distress caused to the plaintiff as a result of his wife's death as well as wages lost during the period of his convalescence.  Without examining the very limited evidence on this point, I need only say that it is clear no such claim can be made under the Common Law Practice Act.

There will be judgement for the plaintiff in the sum of $21,525.00.  I will now hear argument as to costs.